IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: 06004892CF10A JUDGE: LYNCH IV STATE OF FLORIDA, -vs- DANIEL T. PALCU, Defendant. _________________________________/ STATEMENT OF DAVID A. MARTINDALE, PH.D., ABPP Taken on behalf of the Defendant DATE TAKEN: September 3, 2010 TIME: 12:57 p.m. - 2:39 p.m. PLACE: Criminal Justice Center Public Defender's Office 14250 49th Street North Clearwater, Florida 33762 Examination of the witness taken before: Crystal Storms Florida Professional Reporter Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 2 APPEARANCES FOR THE DEFENDANT ROBERT R. WILLS, ESQUIRE and FRANK DE LA TORRE, ESQUIRE Chief Assistant Public Defender Office of Howard Finkelstein 201 SE 6 Street, Suite 3872 Fort Lauderdale, Florida 33301 - - - Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 3 I N D E X PAGE NO. DIRECT EXAMINATION BY MR. WILLS 4 CROSS EXAMINATION BY MR. DE LA TORRE 22 REDIRECT EXAMINATION BY MR. WILLS 46 CERTIFICATE OF OATH 60 CERTIFICATE OF REPORTER 61 E X H I B I T S PLAINTIFF FOR IDENTIFICATION ***** NONE ***** DEFENDANT FOR IDENTIFICATION ***** NONE ***** - - - Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 4 1 Whereupon, 2 DAVID A. MARTINDALE, PH.D., ABPP, 3 acknowledged having been duly sworn to tell the truth 4 and testified upon his oath as follows: 5 THE WITNESS: I do. 6 DIRECT EXAMINATION 7 BY MR. WILLS: 8 Q This is a witness statement of 9 Dr. David A. Martindale Ph.D., ABPP, that is taken here 10 in Clearwater, Florida on the 3rd day of September, 11 2010. My name is Robert Wills, and I'm a chief 12 assistant public defender. With me is 13 Frank de la Torre who is also a chief assistant public 14 defender. Both of us are from the 17th Judicial 15 Circuit which is Broward County, Florida. We're here 16 today to question Dr. Martindale in connection with 17 some issues that may be involved in this particular 18 case. So let's just get started. 19 Sir, if you could just state your name for 20 us. 21 A David, middle initial A., Martindale, 22 M-a-r-t-i-n-d-a-l-e. 23 Q Do you have a particular profession? 24 A I do. I am a licensed psychologist in the 25 states of Florida, New York, and New Jersey. And Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 5 1 within the profession of psychology, my specialty is 2 forensic psychology. 3 Q And do you have any certifications in the 4 field of forensic psychology? 5 A I do. I hold board certification issued by 6 the American Board of Professional Psychology. 7 Q And could you explain for us what that board 8 is. 9 A The American Board of Professional Psychology 10 is, I believe, the only board of its type that is 11 recognized by the various states, by the malpractice 12 insurance carriers, and, I believe, still by the 13 American Psychological Association itself. 14 And what I mean by accepted is that if you 15 hold board certification from the American Board of 16 Professional Psychology and you want to obtain 17 licensure in another state if you're already licensed 18 in one state and you're moving or for some other reason 19 you want to be licensed in a second state, every state 20 with which I'm familiar waives certain licensing 21 requirements for you because you are a holder of that 22 credential. And there is no other similar board whose 23 credential is treated with that respect. 24 As far as I know, the same is true with 25 malpractice insurance carriers. The carriers that Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 6 1 provide liability coverage for psychologists offer a 2 discount to individuals who hold that particular 3 credential. And to the best of my knowledge, they do 4 not offer a discount to individuals who hold 5 credentials from any other organization. 6 And I am less certain about the APA. They 7 may have recently changed their policy, but they used 8 to not permit holders of credentials from other 9 organizations with one exception to list those 10 credentials next to their names in the APA directory. 11 The exception was the National Register of Health 12 Service Providers in Psychology. 13 And so that organization and the American 14 Board of Professional Psychology issued credentials 15 that the APA permitted you to list when you provided 16 them with your biographical information for use in the 17 directory and other credentials that you might claim to 18 have and just not listed. 19 Q How long have you had that board 20 certification? 21 A Since '96. 22 Q All right. Have you, Doctor, testified in 23 the courts here in Florida as an expert witness? 24 A I have. 25 Q And in what particular judicial circuits or Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 7 1 cities or municipalities? 2 A I testified in Tampa in a custody dispute. 3 That was my only testimony in Florida. 4 Q Okay. Have you testified outside of Florida? 5 A Yes, I have. 6 Q And when was the case in Tampa that you 7 testified? 8 A I'm guessing about three years ago. I could 9 obviously check and let you know. 10 Q And were you qualified as an expert witness 11 in that case? 12 A I was. 13 Q And do you remember the name of the judge? 14 A I don't remember the name of the judge. I 15 remember the case name off the top of my head and could 16 give that to you. 17 Q And what is that? 18 A Lien, L-i-e-n, v. Lu, L-u. 19 Q Now, have you been qualified as an expert 20 witness in courts outside of Florida? 21 A I have. 22 Q In what states? 23 A I've been qualified in New York; Arizona; 24 California; Texas; Indiana. I would have to generate a 25 list for you. Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 8 1 Q But those that you just testified to -- 2 A Yes. 3 Q -- at least? 4 A Yes. 5 Q Let's first of all deal with New York. Is 6 New York more than one case? 7 A New York, there were several. I would have 8 to figure out going back to my old records how many. 9 But my beginnings in forensic psychology were in the 10 custody area. And in particular, I functioned as a 11 court-appointed evaluator for the counties of Nassau 12 and Suffolk primarily in New York. And so much of my 13 testimony in New York was in my capacity as a custody 14 evaluator. 15 Q And what about the other states? Let's take, 16 for example, Indiana. 17 A In each of the other states when I have 18 testified, it has been as what most people refer to as 19 a rebuttal witness where I have come in for the purpose 20 of offering commentary on the work already done by a 21 court-appointed evaluator in a custody case. 22 Q And was that the nature of the expert 23 testimony in Arizona and California for example? 24 A Yes, with one exception. One of my 25 appearances in California was to bolster the work of a Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 9 1 court-appointed evaluator as opposed to providing 2 criticism of it. 3 Q How many times did you testify as an expert 4 in California? 5 A I'm only -- I can only think off the top of 6 my head of two because several of the cases that I was 7 involved in settled. It may have been more than two 8 but only two come to mind. 9 Q All right. In the cases that you have 10 testified as a rebuttal witness in custody cases in 11 each of these jurisdictions, what basically would be 12 the nature of rebuttal testimony that you would offer? 13 A The essence of the testimony that I offer in 14 the context of custody disputes is to examine the 15 methodology that was employed by the evaluator. And 16 where I believe there to be flaws in the methodology, I 17 endeavor to explain to the judge what these flaws are, 18 what impact they might have on the ultimate opinions 19 that were formulated by the evaluator. 20 Q Now, in connection with your testimony in 21 these jurisdictions, has the issue of evaluator bias 22 ever come up? 23 A Yes, it has. 24 Q And is that a regular issue in the cases that 25 you have been consulted on? Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 10 1 A I don't think I would characterize it as a 2 regular issue, but neither is it uncommon. There are 3 certainly cases in which evaluators appear sometimes 4 from the outset to have developed strong feelings about 5 one or the other of the two litigants and where there 6 are indications either in the evaluator's 7 contemporaneously taking notes or in the evaluator's 8 formal report as submitted to the court that are 9 suggestive of bias. 10 Q Now, let's just go over your education 11 background briefly. Where did you do your 12 undergraduate education? 13 A My undergraduate education was at 14 Middlebury College in Middlebury, Vermont. 15 Q What was your degree that you received? 16 A My major was psychology. 17 Q All right. And beyond that, what additional 18 education and training did you have? 19 A I received a master's degree in psychology, 20 in particular experimental psychology from 21 Queens College of The City University of New York. 22 Q And what year was that in? 23 A That was in '65, I believe. 24 Q Okay. Could it be '66 if that's what's in 25 your CV? Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 11 1 A Yes. 2 Q Defer to your CV. And in addition to getting 3 your master's in experimental psychology, did you 4 receive a Ph.D.? 5 A I received my doctoral degree in personality 6 psychology from the Graduate Center of the 7 City University of New York. 8 Q Would it be fair to say that that was in 1971 9 if that's what your CV reflects? 10 A Yes. 11 Q Now, do you hold any licenses or 12 certificates? 13 A I indicated I was licensed by the states of 14 New York, New Jersey, and Florida. I had but I no 15 longer renew it because I don't need it a certificate 16 as a health service provider in psychology issued by 17 the National Register of Health Service Providers in 18 Psychology. And I have the board certification from 19 the American Board of Professional Psychology. 20 Q All right. Now, have you held any 21 instructional positions? 22 A Yes. I've held instructional positions at 23 Nassau Community College; at John Jay College of 24 Criminal Justice; at Stony Brook University. 25 Q And the work that you did at the Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 12 1 John Jay College of Criminal Justice, would it be fair 2 to say that that covered the time period from 2000 to 3 2007? 4 A Yes. The only instructional work was during 5 the first semester of that period of time. I taught 6 two courses in ethical issues in forensic psychology. 7 Subsequent to that, I stayed on as a non paid member of 8 the faculty just offering consultation to students in 9 their program. 10 Q Now, you have published several articles and 11 books, have you not? 12 A I have. 13 Q Without going into them as far as by name or 14 whatever, approximately how many are we talking about? 15 A I would have to take a count myself, but I'll 16 do that before you need me. 17 Q Okay. If your CV were to indicate that it 18 would be in excess of say 25 articles or so, would that 19 be a fair statement? 20 A Certainly. 21 Q Now, did you, in fact, publish an article 22 entitled "Bias and Prejudice in Custody Evaluations" in 23 2005? 24 A I did. 25 Q And what was the nature of that article Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 13 1 generally? 2 A The thrust of the article was on the ways in 3 which biases held by evaluators can impair their 4 objectivity during the course of conducting custody 5 evaluations. 6 Q Now, do you also have a publication "Ethics" 7 in Forensic Psychology? 8 A Yes. 9 Q And could you explain what the thrust of that 10 particular publication and preparation is. 11 A That particular chapter is intended to be a 12 broad discussion of ethical issues in all the different 13 areas of forensic psychology as opposed to just the 14 area in which I have in the past focused my work, 15 namely, child custody work. 16 Q Has the work in child custody and bias 17 assisted you in studying the whole issue of bias in 18 other areas or other types of cases? 19 A Yes. I think that the research that is 20 available in the published literature about bias covers 21 a broad spectrum of situations. Some of them and the 22 ones that are of greatest interest to me are the ones 23 in which the bias is such that it affects the judgment 24 of trained professionals as opposed to bias that simply 25 effects lay people in their day-to-day activities. Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 14 1 Q So would it be fair to say that the thrust of 2 your studies of bias in child custody as well as your 3 current studies of bias in other areas or other types 4 of cases basically deals with the impact that bias has 5 on a professional in doing evaluations? 6 A Yes. 7 Q Now, when you review the work of a forensic 8 psychologist or review the evaluation of any 9 psychologist, what are the kinds of things that you 10 would look for to determine whether or not there was a 11 bias in the examiner or evaluator? 12 A The things that I look for are of two types. 13 One is simply statements made by that evaluator either 14 in his or her own notes -- and in particular, there are 15 evaluators who make marginal notations to themselves on 16 whatever types of paper they're taking their notes 17 on -- or statements that are made in the report itself 18 that I believe to be reflective of bias. 19 The other source is discrepancies in the way 20 test data are described in a report. There are times, 21 for example, when it is clear that negative features in 22 one person as revealed -- let's say by test data -- are 23 accentuated, discussed in great detail. And similar 24 negative features in the other person are treated in 25 such a way as to suggest they are of minimal Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 15 1 consequence. 2 The same can be true with positive 3 attributes. That particular strengths in one 4 individual may be accentuated, and strengths in the 5 other individual are treated with just a passing 6 sentence. That type of discrepancy, I believe to be 7 reflective of bias. 8 Q Approximately how many separate either 9 evaluations or evaluators have you evaluated for bias? 10 A Well, I haven't evaluated any specifically 11 for bias. Meaning I have never approached the task 12 because someone specifically said to me, my concern 13 with regard to this particular evaluation is I believe 14 the evaluator to have been biased. 15 When I do the what we call "work product 16 review," I go into the task looking for anything and 17 everything which by the way includes looking for what I 18 believe to be the strengths in the way the evaluation 19 was conducted, not just the deficiencies. 20 Q Have you actually testified to bolster the 21 opinions of evaluators in cases? 22 A Yes, I have. But the total number of 23 evaluations that I have reviewed is in excess of 2,000. 24 Q So in other words, you have reviewed in 25 excess of 2,000 evaluation situations where Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 16 1 professionals had conducted evaluations to see if you 2 could find examples or items that would lead you to 3 believe that there may be bias issues or bias-related 4 issues? 5 A Yes. But I should clarify it. Some of those 6 evaluations -- and I could give you exact numbers 7 obviously by checking -- are done by me for the 8 evaluator himself or herself. The most common 9 situation is when people are relatively new to the 10 field and they for their own reasons, presumably 11 learning reasons, want a more senior member to review 12 their work so that some of the reviews that I have 13 conducted have not been conducted within a litigation 14 context. They have simply been conducted as a 15 consultant to the person who did the evaluation. The 16 vast majority of them have been conducted within a 17 litigation context. 18 Q But in essence, you have reviewed the work of 19 approximately 2,000 separate professionals or at least 20 2,000 separate evaluations? 21 A Separate evaluations. Some of them -- some 22 of those have been done by the same professional. 23 Q Now, if you conduct a review, what are some 24 of the kinds of things that you generally will look 25 for? Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 17 1 A I look for ways in which an evaluator either 2 has or has not adhered to generally agreed upon 3 procedures in terms of how data are collected, what 4 types of data are collected. So I'm looking both from 5 a qualitative and a quantitative perspective. Was the 6 data gathered in the right way from the right sources, 7 and was enough data gathered in order to form the basis 8 for an opinion? 9 If psychological testing has been done, I 10 will look at the psychological testing and indicate 11 whether or not I agree with the interpretations that 12 have been offered of the data that are provided in the 13 psychological tests. And in that mix, I look for the 14 possibility of bias, and there really are two different 15 types of bias. 16 Q And what are the two types of bias? 17 A The two types basically are attitudinal 18 biases which are the ones that we as a culture talk 19 about the most. Attitudinal biases included biases 20 that relate to race; religion; age; sex; 21 characteristics of particular people based upon them 22 being members of specified groups. 23 And cognitive biases, cognitive biases relate 24 to the ways in which we are predisposed to process 25 information. And if I can just give one simple Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 18 1 example, one of the most frequent cognitive biases that 2 we run across in custody work is known as the primacy 3 effect, which is familiar to lawyers. It really 4 relates to the advantage that comes from being the 5 first to present your position. 6 And very frequently what we see in custody 7 cases is that the person who sees the evaluator first 8 causes the evaluator to, in essence, form a mental 9 framework within which all the subsequently gathered 10 information is fit. So that before I even lay eyes on 11 parent number two, I've already developed a certain 12 impression of how these people met; why they were 13 attracted to one another; what their relationship was 14 like before things went sour; what the problems were; 15 what the obstacles were to their being able to just 16 resolve this by themselves instead of becoming involved 17 in the justice system. All of these preliminary 18 impressions can affect the way in which I then deal 19 with the second person to come through the door. 20 Q These reviews when you review somebody's 21 work, do these include any statements that the 22 evaluator or examiner may make outside of the report 23 situation? 24 A Ordinarily not because usually the only 25 records that are provided for my inspection are records Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 19 1 maintained by the evaluator or formal records such as 2 depositions and things of that sort. 3 Q Have you ever had situations where an 4 evaluator would make statements, for example, that you 5 might utilize in newspapers? 6 A I have not, no. 7 Q How about like on television or radio 8 programs? 9 A Not that either. The closest I can give to 10 an example is the issue of marginal notes, and I've 11 certainly had cases where evaluators have made notes to 12 themselves which subsequently became disclosed during 13 normal discovery process. And would you like an 14 example? 15 Q Yes, an example of that. 16 A In one case, a case that I lecture about, an 17 evaluator wrote on the very first page of her notes of 18 her very first meeting with one of the litigants 19 "LLPF." It turned out that "LLPF" was her abbreviation 20 for liar, liar, pants on fire indicating that within 21 the first 15 minutes roughly of her discussions she had 22 already concluded that this person was lying. 23 Q Now, if an evaluator develops that kind of a 24 bias in a forensic psychology case, what are their 25 duties or what are their ethical obligations under the Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 20 1 ethical rules for psychologists? 2 A I don't think it's clear in the example that 3 I gave. Because in the example that I gave, the task 4 has already begun. So then the dilemma becomes how do 5 I minimize the harm that might result from the fact 6 that I now have a bias and presumably realize it. Do I 7 do more harm to these people both economically and in 8 other ways if I say, I realize I'm biased and I 9 withdraw? Or do I do -- am I being more responsible if 10 I simply try and get a grip on myself, so to speak, and 11 try and control for whatever it is that I've realized 12 I'm now feeling? The situation is different where the 13 bias is apparent before the assignment is even 14 accepted. 15 Q For example, if in fact an evaluator had 16 expressed for a bias against a litigator before there 17 was ever an evaluation, before everything happened, you 18 would look upon that as a different situation than like 19 somebody writes something in the notes after they had 20 started an evaluation? 21 A Yes. And the opposite, by the way, is also 22 true. You're describing a negative situation. There 23 have been cases within my experience where an 24 evaluator -- evaluators also occasionally get divorced 25 and have custody disputes. Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 21 1 Where an evaluator is represented by an 2 attorney and the attorney representing someone else 3 puts that evaluator's name into the hopper as someone 4 possibly to be court appointed to do an evaluation in 5 this custody dispute and neither the attorney nor the 6 evaluator make known the fact that the evaluator is 7 represented by this person in his or her own divorce or 8 custody dispute. 9 So obviously, if I am dependent upon you to 10 vigorously represent me in my own dispute, it makes it 11 very difficult for me to be objective in a custody case 12 where you're representing Mr. or Mr. Smith and I'm 13 supposed to be doing an objective evaluation of Mr. and 14 Mrs. Smith. 15 Q Do the ethical rules as you interpret them 16 for psychologists require that you withdraw in that 17 kind of a situation? 18 A Yes. The ethical rule, I believe, is pretty 19 clear that if you have any kind of a relationship that 20 would interfere with your ability to perform the task 21 in question, you are supposed to remove yourself from 22 consideration. And it doesn't matter whether the 23 nature of the relationship is personal or professional. 24 Anything that you know or ought to know will impair 25 your objectivity should be taken into consideration by Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 22 1 you as you consider whether you're suitable for the 2 assigned task. 3 MR. WILLS: All right. At this particular 4 time I think I'm going to turn this over to 5 Mr. de la Torre for some questions regarding some 6 of the materials that you have reviewed in 7 connection with this case, and I may have some 8 follow-up after. 9 THE WITNESS: Can we go off the record for 10 one second? 11 MR. WILLS: Yes. 12 (Off the record discussion.) 13 CROSS EXAMINATION 14 BY MR. DE LA TORRE: 15 Q Good afternoon. 16 A Good afternoon. 17 Q Do you have any future engagements where you 18 have been retained to give any presentations involving 19 the field or the subject of bias, psychological bias? 20 A I do. 21 Q And what is that? 22 A I have been retained by the Massachusetts 23 Association of Guardians Ad Litem to give a full-day 24 presentation for their organization on October 1st of 25 this year. Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 23 1 Q And that's about bias; isn't that correct? 2 A And it's about bias as it affects custody 3 evaluations. 4 Q Let me direct your attention to how you got 5 involved in this matter. Did I contact you on this? 6 A You did. 7 Q And pursuant to this matter, did I send you 8 material to review? 9 A You did. 10 Q And referring to one of the first things I 11 sent you, the case of the State of Florida vs. 12 Bernard Joseph involving a psychologist by the name of 13 Michael P. Brannon and the assistant public defender in 14 the case, George Reres, R-e-r-e-s, involving a first 15 degree murder case. And I asked you to review the 16 transcript. Did you get a chance to do so? 17 A I did. 18 Q Okay. Let me offer you a copy of it. In 19 reviewing this transcript, did you see a line of 20 questioning between Mr. Reres and Dr. Brannon regarding 21 the relationships of Dr. Brannon with the Public 22 Defender's Office? 23 A Yes. 24 Q In particular what was that, if you recall? 25 A The essence of the interaction related to the Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 24 1 fact that the Public Defender's Office had switched 2 from a system in which they were strongly favoring this 3 one particular expert to a system in which they were 4 endeavoring to rotate experts. 5 Q Okay. And was there a personal comment made 6 about Mr. Reres in relation to a question asked to 7 Mr. Reres to Dr. Brannon? 8 A Yes. 9 Q And what was that? 10 A The statement made by Dr. Brannon was that he 11 felt badly that Mr. Reres was demoted from his position 12 as the head of homicide. 13 Q Are there any ethical concerns when you read 14 this as a board certified forensic psychologist when a 15 statement like this is made by an evaluator in front of 16 a jury? 17 A I would expect that the evaluator would 18 recognize that this is a statement which is far more 19 likely to be prejudicial than probative and that in 20 particular it casts Mr. Reres in a negative light if 21 for no other reason than his use of the word "demoted." 22 He's not making reference to a change in someone's 23 position. He's specifically labeling that change as a 24 demotion. And by doing so, he's letting the people on 25 the jury know that this person who is now cross Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 25 1 examining me is someone you people need to know has 2 been demoted. 3 Q Okay. And are there ethical concerns or 4 ethical rules that that contradicts in your profession? 5 A I would say that the standard that is most 6 applicable is the general standard that when we take 7 the stand, our sole obligation is to assist the trier 8 of fact. In this case the trier of fact is the jury. 9 You do not assist the jury by throwing in information 10 which at best is extraneous and at worst is 11 prejudicial. 12 Q In the field of bias and evaluations, does 13 this statement concern you? 14 A It does. 15 Q Can you explain why? 16 A Well, it certainly suggests that by 17 Dr. Brannon's own admission there is friction between 18 him and the personnel within the Public Defender's 19 Office. 20 Q And can this friction or bias make a negative 21 or some sort of effect in an evaluator's final 22 evaluation of a defendant or a client in the Public 23 Defender's Office? 24 A Yes, it can. 25 Q And how can that happen? Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 26 1 A Any personal attitudes that I hold toward 2 litigants or toward those who are representing 3 litigants impairs my objectivity. 4 Q Okay. Is there anything else about this 5 statement that you think is important that I haven't 6 asked you? 7 A I don't believe so. 8 Q Okay. I want to direct your attention now to 9 a juvenile matter and specifically one that occurred on 10 May 14th of 2009, specifically a juvenile matter that 11 occurred in front of the 17th Judicial Circuit in front 12 of Judge Merrilee Ehrlich -- that's E-h-r-l-i-c-h -- 13 styled In Interest of C. J., a child. Did I send you 14 that transcript? 15 A Yes. 16 Q Specifically, did you review the portion of 17 the transcript regarding Assistant Public Defender 18 Lynne DeSanti? 19 A I did. 20 Q Do you recall the controversy or dispute that 21 occurred between Assistant Public Defender Lynne 22 DeSanti on September 24, 2009, between her and 23 Dr. Brannon? 24 A I prefer to look at the transcript if that's 25 possible. Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 27 1 Q Sure. And I'm referring specifically for the 2 record to page 31 of the transcript and -- pardon me -- 3 page 42 through page 43. If you can take a moment to 4 review this, and it describes what Dr. Brannon 5 testified as to the dispute. After you've gotten a 6 chance to review that, if I can give you Ms. DeSanti's 7 portion of the testimony and give you a chance to 8 review it. 9 A Do you wish me to comment on what you've 10 given me now first? 11 Q Yes, sir, please. 12 A I think the key element is to be found on 13 page 44 beginning on line 4 where Mr. Seidman is 14 speaking, and he says, State has an objection here. 15 Whether or not Dr. Brannon has had a confrontation with 16 an individual in the Public Defender's Office has no 17 bearing whether or not he has a bias against the entire 18 office. 19 And my comment would be that I strongly 20 disagree. I think it is naive at best to assume that 21 where a confrontation has taken place that there isn't 22 reasonable cause for concern that in this case 23 Dr. Brannon may have a negative attitude about the 24 personnel in the Public Defender's Office. 25 Q Okay. I would like to give you a chance to Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 28 1 review Ms. DeSanti's portion of the testimony in the 2 same transcript starting on page 87. 3 A I've completed my review of these two pages. 4 Q Okay. What does that tell you? 5 A The essence of the testimony is that 6 according to the testimony, Dr. Brannon confronted 7 Ms. DeSanti and accused her of spreading lies about him 8 and then went on to say that she and her friends -- and 9 I will presume that he was referring to her colleagues 10 in the Public Defender's Office -- are in his word -- 11 I'm sorry -- in her words describing his words, messing 12 with his business. 13 Q Let's talk about that for a minute: the 14 evaluator's concern about his business. What issues 15 does that raise to you as a board certified 16 psychologist -- raise bias or ethical concerns? 17 A I think if I return to my earlier testimony 18 in which I described my understanding of the initial 19 nature of the friction which was that Dr. Brannon had 20 been getting what appears to be the bulk of the work 21 and then a decision was made to rotate experts so that 22 his portion of that work dropped off significantly, I 23 think that the essence of what he is saying when he 24 used the phrase -- if it has been reported correctly -- 25 "like messing with my business" is that he feels that Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 29 1 there has been an economic impact on him as a result of 2 this decision to rotate experts and that he appears in 3 his actions to be expressing his resentment of the 4 Public Defender's Office for having made that decision. 5 My position would be that if there is 6 resentment whether or not it's realistic for him to 7 feel that resentment -- if there is resentment, that 8 resentment is, in essence, a form of bias that 9 interferes with his ability to be objective in 10 evaluating clients that are represented by the Public 11 Defender's Office. 12 Q Let me show you now from the same hearing, 13 same transcript -- and now I apologize. But I go back 14 to Dr. Brannon testifying and ask you to review 15 page 75. 16 A Yes. 17 Q Now, what statement in that page that I gave 18 you, if any, caused you concern? 19 A Dr. Brannon is being asked whether or not he 20 made the statement -- this is on line 3 -- you're 21 taking food out of my mouth. And on line 4 in 22 responding, he says, I absolutely said that. 23 Q What gives you concern? 24 A Aside from what I said earlier which is that 25 he is making a statement about the economic impact on Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 30 1 him and expressing resentment toward the Public 2 Defender's Office for this reduction in work, he is 3 expressing it in a very emotional way. 4 The phrase "taking food out of my mouth" has 5 a particular emotional quality to it. So it goes well 6 beyond making a statement of fact which is something 7 like, I used to get such and such amount of business 8 from your office, and now I'm getting less, and I'm 9 feeling the economic impact. The fact that he phrases 10 it in this way "taking food out of my mouth" heightens 11 my sense of this as an expression of resentment. 12 Q Now, as an expert in bias, does this raise 13 alarms to you? 14 A It certainly suggests again that there is 15 reason for Dr. Brannon himself to question his ability 16 to be objective in work that involves the 17 Public Defender's Office. 18 Q Okay. I want to direct your attention now -- 19 I sent you a copy of an evaluation done by Dr. Brannon 20 of one of our clients and also a jail log that 21 indicates at the point in time that he signed in and 22 then signed in at the jail. And I'm going to hand it 23 to you and ask you if you recognize it. 24 A I do. 25 Q Is that what I described as the evaluation Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 31 1 and in the back the log? 2 A Yes. Do you wish me to identify it with the 3 defendant's name? 4 Q That's not -- yeah, please. 5 A Yeah. The defendant's name in this case is 6 Jimmie, J-i-m-m-i-e, Davis, D-a-v-i-s. 7 Q When you reviewed the log regarding this 8 particular case, what does it show you as the amount of 9 time that the evaluator, Dr. Michael Brannon, spent 10 with the defendant? 11 A I believe from memory -- though I'm having 12 difficulty reading this copy -- that it was 13 minutes. 13 Yes. Yes, that's correct. 14 Q Okay. Do you have an opinion, not 15 necessarily whether the legal obligations of the 16 evaluations were met -- that being what was put in, 17 what was asked -- but the quality of an evaluation 18 that's done in 13 minutes and being able to ascertain 19 all this information from a particular individual? 20 A I would simply express my concern that the 21 questions that need to be posed, the answers that need 22 to be obtained could be obtained in this short a period 23 of time. There has to be at least some warm-up period. 24 If you look at most psychological reports and in almost 25 any context -- employment context, any other context -- Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 32 1 they very frequently believe -- begin with a relatively 2 standard phrase that says something like, rapport was 3 established. 4 We among ourselves, I believe, are in 5 agreement that in order for a face-to-face evaluation 6 to be valid at least some minimal degree of rapport 7 must be established which presumably means some amount 8 of what many people would call small talk, 9 conversation, a warm-up period. It's not clear to me 10 and it certainly is not indicated anywhere in the 11 record how it was possible for Dr. Brannon in a 12 13-minute period to develop rapport and then to pose 13 all the questions that the statutes require in order to 14 formulate an opinion with regard to competency. 15 Q Okay. I want to redirect your attention to 16 the juvenile transcript, and I apologize for jumping 17 back and forth. Specifically, do you recall reading in 18 that juvenile transcript where Dr. Brannon describes 19 after having a confrontation with Linda DeSanti then 20 having also a confrontation with the Public Defender in 21 Broward County, Howard Finkelstein? 22 A I do. 23 Q Do you recall him saying that in all 24 conversations he's had with Mr. Finkelstein that 25 Mr. Finkelstein was aggressive toward him? Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 33 1 A Yes. 2 Q Does this raise concerns for you regarding 3 bias toward an office when an evaluator describes his 4 relationship with the head of that organization in that 5 manner? 6 A It's part of the same dynamic that we see in 7 the phrase "taking food out of my mouth." The essence 8 of it is Dr. Brannon appears through his statements to 9 believe that he is being treated unfairly by the Public 10 Defender's Office. 11 And my contention would be that once he has 12 formulated that opinion of your office -- again whether 13 that opinion is or is not with true foundation. Once 14 he has formulated that opinion, it is impossible for 15 him to remain neutral in cases that involve your 16 office. 17 Q And an evaluator's bias towards an attorney 18 or attorney's office, is that important and can that 19 seep out in an evaluator's job in doing an assessment 20 of a client? 21 A In my professional opinion, the answer is 22 absolutely. I am aware that there may be some 23 controversy about this because it has broader 24 implications. I believe that most judges off the 25 bench, off the record would acknowledge that if they Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 34 1 have a personal dislike for an attorney, it affects 2 their ability to objectively examine the litigant's 3 position before the court. It's something that we all 4 regret. 5 But part of this all boils down to the 6 unfortunate reality that with being human, which is 7 obviously nice -- we would not wish to be tried by 8 computers. But there is a downside, and the downside 9 is that we can be affected by attitudes which don't 10 make sense, but they govern our emotion. So that if I 11 am angry at an attorney and I'm a judge and the 12 attorney represents a particular client, that anger 13 that I feel at the attorney may affect me as I evaluate 14 the position of the litigant before the court. 15 Q What if you are a psychologist and you're 16 angry at the attorneys, does that same thing wash over 17 to that scenario if you're an evaluator -- 18 A The same -- 19 Q -- or psychologist? 20 A The same is true. And the simplest evidence 21 of this is the divorce rate among mental health 22 professionals. In particular, the divorce rate among 23 mental health professionals is no lower than the 24 divorce rate among the general public. 25 And what we ought to realize from that is Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 35 1 that no matter how much we learn in books about 2 interpersonal interactions, when it comes down to real 3 life and interacting with in this case our spouses, we 4 don't seem to be any more effective at it than anybody 5 else. And the reason that I think this statistic is 6 compelling is because those mental health professionals 7 that deny that they are susceptible to bias inevitably 8 suggest that somehow our knowledge and our training 9 enables us to not be affected by these things. 10 And my point in raising the issue of the 11 divorce rate is that when it comes down to human beings 12 interacting with other human beings, no matter how much 13 we have studied things like bias, our study of this 14 dynamic does not render us immune from it any more than 15 a physician's study of various germs renders the 16 physician immune from the effect of those germs. 17 Q Let me touch on that a little bit more. Is 18 an evaluator or a psychologist capable or able to 19 evaluate his or her own bias in a particular case? 20 A No. And I think that there is research that 21 shows that we are unable the same as other people are 22 to recognize biases in ourselves. 23 Q Let me show you a letter dated June 28, 2010, 24 from the office of the Public Defender's Administration 25 to Dr. Brannon and ask you: Have you seen this before? Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 36 1 A Yes, I have. And -- 2 Q Go ahead. 3 A I will just identify it as a letter dated 4 June 28th of 2010 written to Dr. Brannon and appearing 5 over the signature of Howard Finkelstein and eight 6 other members of the Public Defender's Office. 7 Q Okay. And what does that letter ask 8 Dr. Brannon to do, if anything? 9 A The letter, in essence, expresses the 10 concerns of your office with regard to Dr. Brannon's 11 bias. And if you would like me to, I can read the last 12 paragraph. 13 Q Yes, please. 14 A The last paragraph simply says, it is clear 15 to us that your strong bias against this administration 16 has made you incompetent to act as a mental health 17 evaluator for our clients. We are therefore requesting 18 that you immediately refuse court appointments to 19 evaluate public defender clients. Please govern 20 yourself accordingly. 21 Q Dr. Martindale, what would a reasonable 22 psychologist in the field of forensic psychology do or 23 should do when receiving a letter like that from a 24 potential client? 25 A It is my opinion that Dr. Brannon after Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 37 1 having received that letter should have responded by 2 agreeing to what Mr. Finkelstein and the other 3 signatories to that letter asked which is that he 4 voluntarily remove himself from cases involving the 5 Public Defender's Office. 6 Q What do you say that? 7 A Because I believe that when an expert witness 8 takes the stand, the two most essential ingredients are 9 the expert's expertise clearly and the expert's 10 credibility that no matter how much knowledge you may 11 have about the topic in dispute if you are for any 12 reason perceived as being less credible, that 13 interferes with your effectiveness. 14 And I think that when one side in a dispute 15 goes on record as saying, we view you as holding a bias 16 against our organization that the mere fact that that 17 statement to you has been made in a formal manner, I 18 think leaves you in the position of being unable to 19 separate your work from the emotional reaction that you 20 must feel when you get this letter, and that in turn 21 diminishes your credibility as an objective evaluator. 22 Q I want to direct your attention now to a 23 transcript in a case, State of Florida vs. 24 Patrick Young, Y-o-u-n-g, on March 2, 2010, and ask you 25 to read page 61 of the transcript where Dr. Brannon is Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 38 1 on the stand being questioned by Attorney Joseph Walsh, 2 W-a-l-s-h, a private practitioner out of West Palm 3 Beach. 4 A The important part as I see it, page 61 5 beginning with the questioner, you have had some issues 6 with the Public Defender's Office here in Broward. 7 Will you agree with that? 8 Line 12 is Dr. Brannon's answer. 9 Dr. Brannon's answer is, they've had issues with me. 10 Then it goes on, obviously sometimes these 11 things are reciprocal. Sometimes one issue is another. 12 Dr. Brannon simply says, I understand. I 13 will take that to mean when he says "I understand" that 14 he as a psychologist is aware of the natural 15 reciprocity of emotional reactions in interpersonal 16 dynamics. 17 By which I mean, the people that I tend to 18 like not surprisingly are the people that like me. And 19 the opposite is also true that if someone says to me 20 repeatedly and on at least one occasion in a formal 21 document, I'm not comfortable with you, I cannot 22 possibly remain comfortable with the person who's made 23 that statement to me. 24 So that Dr. Brannon's statement that the 25 public defenders have issues with him is similar to two Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 39 1 kids getting into a dispute where one of them says, he 2 hit me first. It doesn't really matter. Once the 3 hitting starts, a fight ensues. And the same is true 4 even if all we're talking about is words. There have 5 been some very unpleasant words exchanged. 6 And for Dr. Brannon to take the position that 7 it's not me, it's you guys, ignores the fact that once 8 this dynamic has started regardless of whose fault it 9 may have been if that's even relevant. Once the 10 dynamic has started, I fail to understand how he can 11 take the position that it doesn't interfere with his 12 objectivity. It seems to me that what we know about 13 psychology tells us that it has to interfere with his 14 objectivity. 15 Q Thank you. I want to show you now a 16 newspaper article that appeared about the controversy 17 that we're talking about today in the Fort Lauderdale 18 Sun-Sentinel on August 2, 2010. And I hand it to you 19 and ask you if you've seen that before. 20 A I have. 21 Q And have you reviewed it in your preparation 22 to make an assessment in this particular matter? 23 A I have. 24 Q What, if anything, concerns you in reading 25 this article? Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 40 1 THE WITNESS: Off the record for a second? 2 MR. WILLS: Yes. 3 (Discussion off the record.) 4 MR. DE LA TORRE: We're back on the record. 5 And I gave Dr. Martindale my copy which the 6 letters are extremely small. I have a magnifying 7 glass to try to read it myself. 8 BY MR. DE LA TORRE: 9 Q You're looking it up now in your computer; is 10 that correct? 11 A Yes. 12 Q Thank you. 13 A The parts of the article that to me are most 14 important are as quoted by the reporter: Dr. Brannon 15 said that the Public Defender's Office has made him the 16 target of a witch hunt. 17 And he went on to say they -- presumably 18 meaning the staff of the Public Defender's Office -- 19 are like villagers from Salem going out to try and find 20 witches to burn at the stake. And he added, it doesn't 21 matter if the person is a witch. They just want to 22 feel good about the burning. 23 Feeling good about the burning suggests that 24 as Dr. Brannon perceives this, the Public Defender's 25 Office is punishing him by depriving him of income, Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 41 1 taking food from his mouth. And he, in essence, when 2 he says it doesn't matter if the person is a witch is 3 also saying it doesn't matter to them whether there is 4 a good reason or not a good reason for having made this 5 decision to rotate experts thereby depriving me of an 6 income which I was enjoying so that he is essentially 7 accusing the office of taking retribution for something 8 unspecified. 9 And again, I would point out that if that is 10 his position, I don't see how he can subsequently state 11 that his ability to function as an objective, impartial 12 evaluator of clients represented by the Public 13 Defender's Office is not impaired by this attitude. 14 Q I want to now give you a copy of an e-mail 15 that I sent you regarding a statement written by 16 Assistant Public Defender George Reres and a certain 17 agreement that he had with Dr. Brannon when Dr. Brannon 18 was employed and retained by the State Attorney's 19 Office. Do you recognize that, Doctor? 20 A Yes, I do. 21 Q And what's that tell you? 22 A The essence of the e-mail is that you are 23 being informed in this e-mail that Dr. Brannon 24 endeavored to engage in an arrangement in which if he 25 were to be given more work by the Public Defender's Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 42 1 Office that he would use his influence with the 2 Prosecutor's Office to engage in a prearrangement that 3 presumably would be advantageous to the client being 4 represented by the Public Defender's Office. 5 Q Is there ethical concerns here as a 6 psychologist doing something like that when you're 7 employed by the state attorney and you talk with the 8 defense attorney and say I'm going to help you get a 9 charge reduction? Is there ethical concerns? 10 A There is an ethical concern because it 11 represents a conflict of interest. If my interest in 12 obtaining more opportunities to engage in remunerative 13 work conflicts with my obligation to perform a certain 14 task with objectivity and make recommendations based 15 upon my evaluation as opposed to based upon wanting to 16 please someone, that is a classic conflict of interest. 17 Q Now, I sent you a tape, is that correct, a 18 DVD tape of Dr. Brannon on The Today Show, I believe? 19 A Yes. 20 Q It was regarding a case of Wayne Treacy -- 21 A Yeah. 22 Q -- a juvenile in Broward County, a highly 23 publicized case. Did you get a chance to see that DVD? 24 A I did. 25 Q Are there ethical concerns or problems with a Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 43 1 psychologist going on national TV or any sort of media 2 and talking about a particular case that they're 3 employed with and dealing with in hopes of boosting 4 their own ability to gain other cases or make money? 5 A Built into your question, I hope you will 6 acknowledge is a statement about his motives. 7 Q True. 8 A I will state for the record that I'm not 9 going to pass judgment on his motives. But I believe 10 that someone with expertise in the judicial system -- 11 how it works, how jury trials work particularly in 12 cases where a jury is not sequestered -- should be 13 aware that public statements made during the course of 14 a trial, aired on television can have a detrimental 15 effect on the system that is intended to produce a just 16 outcome and that it is difficult to imagine what 17 acceptable motives might be involved in making the 18 decision to go on television and discuss a case that is 19 currently at trial. 20 Q In addition to that, are there ethical 21 concerns when a psychologist evaluator is dealing with 22 a client/a defendant and speaking to that defendant 23 dealing with his case and then going to the media? Are 24 there any violations of ethics in doing that? 25 A There are certainly violations of ethics Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 44 1 again because you don't know what the effect of this 2 information when aired publicly will have on the trial 3 process. 4 Q Okay. Now, you're aware that my office is 5 the Public Defender's Office, and we deal with indigent 6 clients? 7 A Yes. 8 Q And because of that, many times psychologists 9 are not hired by my office but are appointed by the 10 court? 11 A Yes. 12 Q Now, is there a presumption in the field of 13 psychology or in the courts that we have to make 14 regarding those psychologists that are being appointed 15 regarding bias? 16 A Yes, of course. 17 Q And what would that be? 18 A The presumption with regard to any 19 court-appointed expert as contrasted with a retained 20 expert is that the court-appointed expert is obligated 21 only to the court which presumably means that the 22 expert will be neutral and that there are no known 23 limitations on the expert's capacity to maintain 24 objectivity. 25 Q After reviewing all the material that was Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 45 1 sent to you, do you have an opinion within reasonably 2 psychological certainty whether Dr. Brannon has a bias 3 that would preclude him or should preclude him from 4 being an unbiased evaluator in public defender cases? 5 A Yes. 6 Q And what is that? 7 A My opinion based upon his statements of 8 record is that he is acknowledging that there is 9 friction between him and the Public Defender's Office 10 and that the mere existence of that friction whether it 11 is his fault, the Public Defender's Office fault, or 12 nobody's fault or both parties' fault interferes with 13 his ability to objectively evaluate clients that are 14 represented by the Public Defender's Office. 15 Q In reviewing all the material, are you 16 surprised that not only Dr. Brannon but any reasonable 17 forensic psychologist would not have removed themselves 18 from public defender cases in this scenario? 19 A I am. 20 Q And why is that? 21 A I believe that when one accepts the basic 22 notion that the obligation of the expert witness is to 23 assist the trier of fact, if one side in the dispute 24 expresses concern, particularly if they are able to 25 document the reasons for that concern -- when they Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 46 1 express concern about an expert's ability to maintain 2 objectivity, then I think the appropriate thing for the 3 expert to do is essentially to say, I regret the fact 4 that you've lost confidence in my ability to maintain 5 my objectivity. But if that is the case, I will remove 6 myself from consideration. 7 MR. DE LA TORRE: Thank you. I don't have 8 any further questions. Bob? 9 REDIRECT EXAMINATION 10 BY MR. WILLS: 11 Q Doctor, I want to refer back to the first 12 transcript that Mr. de la Torre referred to in his 13 questions to you. This is the incident where Mr. Reres 14 was questioning Dr. Brannon, and Dr. Brannon 15 voluntarily interjected about the demotion. 16 A Yes. 17 Q Okay. On that particular transcript after 18 there was the discussion of the demotion, basically 19 Mr. Reres asked the question: Would you agree, Doctor, 20 that my demotion had absolutely nothing to do with this 21 case or your involvement in any case at any time? 22 And the response was by Dr. Brannon who 23 testified in front of the jury: You asked me what I 24 was concerned about and issues that I have, so I was 25 listing those issues. I think you are clearly Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 47 1 recognized as the best attorney in that office. 2 Let me stop right there. Is there anything 3 about that comment that you think would be 4 inappropriate based upon your studies of evaluators' 5 bias? 6 A Well, there are really two issues as I see 7 it. One is that he's commenting on something that is 8 well outside his sphere of expertise. He has no way of 9 knowing who's an effective litigator and who is not an 10 effective litigator. That's not his field. 11 But what I perceive in this statement -- and 12 obviously, I don't know what 12 jurors would 13 perceive -- is that there's an implicit accusation that 14 the office treats people unfairly because he is on the 15 one hand pointing out that this person has been demoted 16 and on the other hand pointing out that in his opinion 17 this person who has been demoted is the best person 18 around which suggests that the office -- whoever is in 19 charge of promoting, demoting -- treats people 20 unfairly. 21 Q And if an evaluator has the belief that an 22 office treats somebody unfairly, would that indicate a 23 bias that they have against that office? 24 A Yes. 25 Q And further in that transcript the statement Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 48 1 was made in that same questioning: But I think I've 2 said that many times to many people, but I think that 3 was capricious and unfair what happened to you. 4 Now, you agree that that's something you 5 wouldn't necessarily expect an evaluator to testify to 6 when they're evaluating somebody's competency in a 7 case? 8 A No. And again, the two words "capricious" 9 and "unfair" speak for themselves. I don't need to 10 translate them. 11 Q Does that to you indicate what we might 12 consider to be a red flag of bias? 13 A He's clearly expressing a negative attitude 14 about the office. 15 Q And if an evaluator has that negative 16 attitude towards an office that is representing someone 17 that he's evaluating, is there to a reasonable degree 18 of psychological certainty a genuine concern about bias 19 and how he would properly evaluate that person? 20 A Yes, there is. 21 Q Now, when there is bias or indications of 22 bias that are apparent, would it be your testimony that 23 the obligations of the evaluator would be to go and 24 remove himself from those cases based upon the rules of 25 ethics and other consideration of psychologists? Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 49 1 A That's my opinion, yes. 2 Q And would it be your opinion that in the 3 event the person didn't remove themselves and purported 4 to continue to evaluate persons represented by that 5 office that the standards and the procedures and the 6 conclusions of the evaluation would be suspect because 7 of the bias? 8 A That would be my position, yes. 9 Q Do you have an opinion as to whether or not 10 that kind of evaluator should testify to help the 11 finder of fact if they have that kind of a bias? 12 A Well, testimony follows the evaluation. And 13 I've already indicated in my view the evaluator should 14 withdraw from consideration as an evaluator which would 15 obviously mean they would not be testifying. 16 If we're discussing a case in which the 17 evaluation has already been completed, my statement 18 would be that, yes, there is reason to question the 19 objectivity with which the evaluation was conducted. 20 Q Now, the newspaper article that 21 Mr. de la Torre talked to you about where there is this 22 reference to the witches -- 23 A The witches of Salem. 24 Q The witches of Salem, does a statement like 25 that support the view or support the concern that, in Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 50 1 fact, Dr. Brannon would have a bias against this 2 office? 3 A Yes, it does. If I may add, it fits in with 4 his own use of the word "capricious." One has to be 5 capricious if as he put it, it doesn't matter if the 6 person is a witch; they just want to feel good about 7 the burning. 8 Q So if, in fact, Dr. Brannon had conducted an 9 evaluation of a defendant even prior to when this 10 controversy or this bias occurred but now he's called 11 to testify today, would it still be your testimony that 12 the person should not be testifying? 13 A Yes, I certainly think there's a reasonably 14 foreseeable risk that the controversy, the friction 15 would affect him in delivering his testimony. 16 Q And would you agree or have an opinion as to 17 whether or not that that kind of a bias would prevent 18 someone to be able to give an opinion to a reasonable 19 degree of psychological certainty? 20 A I would not feel comfortable using the word 21 "prevent." I would feel more comfortable viewing this 22 in a probabilistic fashion. The obligation of the 23 expert is to take all reasonable precautions to protect 24 him or herself from being adversely affected by biases. 25 And I think that the more evidence there is that bias Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 51 1 exists, the more likely it is that that bias will have 2 an adverse affect upon one's objectivity in conducting 3 an evaluation. And if it has already been completed 4 will have an adverse affect upon one's ability to 5 objectively and dispassionately offer testimony. 6 I don't think we can describe it as a 7 certainty which is what I read into the word "prevent," 8 so I would not put it in those terms. But certainly, I 9 think it is a situation in which the dynamics that are 10 now a matter of record can be reasonably seen as very 11 likely to reduce the possibility, the probability that 12 he will be able to function as an effective, objective 13 testifying expert witness. 14 Q Now, Doctor, one of the issues in connection 15 with Dr. Brannon and the Public Defender's Office is 16 that at one particular time Dr. Brannon was receiving 17 an annual compensation in excess of $600,000 from this 18 office, and then the office switched a policy and went 19 to a rotation which had a dramatic decrease in the 20 amount of compensation of an expert. 21 Now, would the change, a drastic level of 22 change like from 600,000 to $60,000 a year -- would 23 that in and of itself be an indication of a bias? 24 A A bias on the part of the public defender? 25 Q On behalf of the expert witness. I guess Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 52 1 what I'm saying is: Would that in and of itself 2 indicate to you that the witness has a bias? 3 A No. 4 Q So the fact that he lost the money, you know, 5 that could be an explanation for the feelings, but it's 6 these other statements that were made and these other 7 words that were used. That is the basis of your 8 opinion. Would that be a fair statement? 9 A Yes. I mean, in essence, as much as money is 10 an issue for most people in this culture, there are 11 people who take situations like this for what they are. 12 Policy changes can affect my ability to have the income 13 this year that I had last year. I liked last year's 14 income of 600,000 and whatever better. But if someone 15 says to me, we've got a new policy; we're going to be 16 rotating experts, I may not love that policy. But I 17 don't necessarily become resentful and so on. 18 Q So you wouldn't opine in that situation the 19 witness would be biased just because that happened to 20 them? 21 A Absolutely not. The evidence of bias, as I 22 see it, is in his own statements, not just in the fact 23 pattern. I would not presume that if his income was 24 substantially decreased that that in and of itself 25 would necessarily create in him a bias against your Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 53 1 office. But when he used phrases as emotionally toned 2 as "taking food out of my mouth," the reference to 3 witch hunts, those are clear expressions of resentment. 4 Q On the other hand, would you agree with the 5 proposition that after you look at these other 6 statements: arbitrary, capricious, the witches, and the 7 burning and then when you look at those things which 8 you've testified as evidence of bias but then you look 9 at it and add to it the loss of money, does that in 10 your view make the bias either clearer or provide an 11 explanation for the bias? In other words, I guess what 12 I'm saying is that if the money is not an issue in and 13 of itself, after you have this other stuff, does the 14 money look a little differently? 15 A I don't see the money as relevant because to 16 me the only issue that's relevant is his clear 17 expressions of resentment towards your office. It 18 wouldn't matter to me what the basis was for that 19 resentment. And again, it wouldn't even matter to me 20 whether the resentment was of a type that other people 21 would say, oh, he has a right to that resentment. It 22 doesn't matter. All that matters is that once the 23 resentment is in place, it affects his objectivity so 24 that the facts that allegedly underlie the development 25 of that resentment don't seem pertinent to me. All Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 54 1 that's pertinent is the resentment. 2 Q In the training of a forensic psychologist, 3 does that training stress the importance of 4 objectivity? 5 A I'm having a problem with that, but I would 6 have to say no. 7 Q Do the ethical codes and ethical rules for 8 psychologists promote or advocate that there should be 9 objectivity in evaluations? 10 A Yes. In particular, there is one specific 11 ethical standard that addresses the issue of conflict 12 of interest. 13 Q And basically, the standard that addresses 14 the standard, what does it actually say? 15 A If I may just read directly? 16 Q Yes. 17 A From Standard 3.06 which is called Conflict 18 of Interest: Psychologists refrain from taking on a 19 professional role when personal, scientific, 20 professional, legal, financial interests, or 21 relationships could reasonably be expected to impair 22 their objectivity, competence, or effectiveness in 23 performing their functions as psychologists. 24 I'll stop there. There's more to it, but the 25 other part isn't applicable. What's applicable here is Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 55 1 that there is, in essence, an interpersonal 2 relationship, not just a work relationship, an 3 interpersonal relationship between Dr. Brannon and the 4 members of the staff, the professional staff, of the 5 Public Defender's Office. 6 And that is a relationship which is now 7 characterized by friction, acknowledged openly by 8 Dr. Brannon, and that relationship now interferes with 9 his ability to maintain objectivity when he is required 10 by the nature of his assigned task to evaluate people 11 that are represented by your office. 12 Q Doctor, in your study of bias and evaluators, 13 have you run across either cases or decisions by the 14 courts or situations where basically the evaluator may 15 be prevented from actually testifying because of the 16 bias? 17 A I'm not certain how to answer that because in 18 decisions that I've read where evaluators have been 19 excluded, usually the rationale for the exclusion is 20 usually phrased more broadly. I certainly could give 21 you a specific judicial decision in which reference is 22 made in the judicial decision discarding the 23 evaluator's report to the disdain that is manifested by 24 the evaluator for one of the litigants in the 25 evaluator's own notes. Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 56 1 Q And what case decision was that? 2 A I can give you the full cite, but the case 3 was Frankel vs. Frankel in New York. It was a 4 matrimonial case. The judge hearing the case was the 5 same judge who had appointed the evaluator, and the 6 evaluator's report was subsequently, I guess, ignored 7 by the judge. 8 And in a rather lengthy opinion, the judge 9 explained her reasons for not being guided by the 10 opinions that were expressed to the judge by her own 11 appointed evaluator. And among those reasons was the 12 disdain that the evaluator expressed toward one of the 13 litigants. 14 Q So in other words, the fact finder in that 15 case, the judge, basically in the court's finding 16 indicated that it totally disregarded that report for 17 that reason? 18 A Yes. 19 Q And, of course, as a forensic psychologist, 20 you're familiar in criminal cases that the jury is the 21 fact finder? 22 A Yes. 23 Q So basically, if, in fact, that judge in 24 Frankel vs. Frankel's decision were to be followed in a 25 jury case, that report then would be kept from the Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 57 1 jury. Would that be a fair statement? 2 A That's correct. 3 Q You indicated that you had reviewed 4 approximately 2,000 different evaluations? 5 A Yes. 6 Q For bias? 7 A Yes -- no, no, no. 8 Q For -- 9 A Not for bias. 10 Q Not for bias but just for? 11 A In general. 12 Q You've reviewed them in general for their -- 13 A Yes. 14 Q Okay. And on the issue of bias from what 15 we've looked at, do you have an opinion regarding how 16 the current situation between the evaluator, 17 Dr. Brannon, and the Public Defender's Office might 18 rank in some of those that you see? 19 A No. 20 Q Are you able to do that? 21 A No. I think it's sufficient to say that his 22 own statements make clear his resentment of the Public 23 Defender's Office. Where it ranks with regard to 24 similar biases expressed by other evaluators doesn't 25 seem to me to be pertinent. And I have to acknowledge Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 58 1 that if I were to do that, it would be speculative. 2 Q Okay. I don't think I have anything further. 3 Is there anything else, Doctor, that you think might be 4 important that we didn't ask you here today regarding 5 the materials that you reviewed about the current 6 dispute between the Public Defender's Office and 7 Dr. Brannon regarding his bias and the way he 8 approaches the office? 9 A Not that I can think of. I think the only 10 things left are for me to get to you presumably by 11 e-mail the full case citation for Frankel and perhaps 12 anything else that I may have made reference to. 13 The one other thing that I would say -- but I 14 don't know whether this is helpful or not only because 15 it's a psychologist commenting on a legal decision -- 16 is that I view the United States Supreme Court's 17 decision in the Caperton case as being very significant 18 and very pertinent to the issues here. Because the 19 essence of the finding of the Supreme Court was that 20 individuals -- including in this case trained 21 individuals, a judge -- do not have the capacity to 22 evaluate the existence of bias in themselves. 23 And, in essence, what the Supreme Court ruled 24 in the Caperton case was that the judge who had refused 25 to recuse himself had undoubtedly tried as best he Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 59 1 could to evaluate himself with respect to whether or 2 not he was biased and presumably was sincere when he 3 concluded that he wasn't biased. But the court 4 basically said, but we disagree. 5 And I think that's important because the 6 issue here should not rest on any assurances that 7 Dr. Brannon might offer concerning being free of bias. 8 The Supreme Court is essentially reflecting what I 9 believe the field of psychology would say which is it's 10 not humanly possible to engage in the kind of 11 self-examination that would enable you to then 12 pronounce with objectivity I am or I am not biased. 13 Q As a result in the event that there was an 14 objection that was raised to an evaluator based upon a 15 bias by others, you believe that the proper thing for 16 them to do would be to withdraw and not get involved in 17 cases with that party? 18 A Yes. 19 MR. WILLS: Nothing further. 20 (The taking of the statement was concluded at 21 2:39 p.m.) 22 * * * 23 24 25 Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 60 CERTIFICATE OF OATH STATE OF FLORIDA COUNTY OF PINELLAS I, Crystal Storms, Florida Professional Reporter, Notary Public, State of Florida, certify that DAVID A. MARTINDALE, PH.D., ABPP, personally appeared before me on September 3, 2010, and was duly sworn. Signed this 6th day of September, 2010. _________________________________ Crystal Storms Florida Professional Reporter Notary Public, State of Florida Morgan J. Morey & Associates 727.894.7407 DAVID A. MARTINDALE, PH.D., ABPP 61 CERTIFICATE OF REPORTER STATE OF FLORIDA COUNTY OF PINELLAS I, Crystal Storms, Florida Professional Reporter, do hereby certify that I was authorized to and did stenographically report the statement of DAVID A. MARTINDALE, PH.D., ABPP; and that the foregoing transcript is a true record of my stenographic notes. I FURTHER CERTIFY that I am not a relative, employee, or attorney, or counsel of any of the parties, nor am I a relative or employee of any of the parties' attorney or counsel connected with the action, nor am I financially interested in the action. Dated this 6th of September, 2010, at Palm Harbor, Pinellas County, Florida. ____________________________________ Crystal Storms Florida Professional Reporter Morgan J. Morey & Associates 727.894.7407